Van Dyck Law, LLC is a full service Estate Planning & Elder Law practice. They write about comprehensive planning in the areas of wills, trusts, powers of attorney, medical directives, Elder Law and probate & estate administration.

Healthcare Directive

11/14/2018

“An important part of caring for your aging parents is understanding their situation and knowing what they want. If you don’t know, then it is up to you to figure it out.”

It’s a good idea to talk with your parents on a regular basis about their wishes for the future, so that everyone can get comfortable with the conversation and the topics, says Next Avenue in the article “How to Have Difficult Conversations With Your Aging Parents.” You’ll all avoid a fair amount of stress and guesswork, if you can have these open and frank conversations.

Here are the conversations you need to have:

The Money Talk. What’s their financial situation? Do they have enough to pay their bills right now? What if they live another ten or twenty years? Do they have a will? Do you know where the will is, and the name of the estate planning attorney who created it? Do they have powers of attorney for finances in place?

The Health Talk. Medical issues that you’ve heard about but aren’t fully informed about need to be clarified. What medications do they take, and is there a list posted on the refrigerator, or located somewhere you can get to it, in the event of an emergency? Have they properly documented a power of attorney for healthcare?

The Aging Talk. Do they plan on aging at home, or are they considering moving to a continuing care facility? What senior living options should they consider, if and when they can’t live on their own anymore?

The End of Life Talk. This is the hardest one, but it is hard for everyone. If they should have a terminal illness, what do they want to happen? Do they have a medical directive, or a living will? How do they feel about extreme measures being taken to sustain life, if they are incapacitated?

The Family Legacy Talk. This is a warmer, happier conversation. What do they want the family to remember about them, and how can you work together to assemble the things that will help accomplish this? Are there family recipes, photo books, treasured heirlooms, videos or jewelry they want to pass along? Are there stories they want to share?

Note that these are not one-time conversations, but processes. Everyone will respond differently, and some parents may need more time to reflect and consider their answers than others. Your parents will need to be ready to have these conversations with you. Some conversations may touch on a raw memory and have to stop, to resume at a later point.

Depending on your parents’ personalities, you may want to speak with them together, if they are both living, or individually. One might be more comfortable discussing certain matters without the other present.

Take notes of the conversation. You’ll be able to review the notes with them if need be and share that information with siblings and family members. You can also see what’s left out. Your notes are not a legally binding document, but they can help when their wills are created or revised.

Speak with an estate planning attorney as part of this process. Estate planning attorneys are fluent in the issues of aging and will be able to discuss sensitive matters with your parents and you, bringing up issues you may not have considered. They will sometimes also have Life Care Specialists who assist with these discussions.

10/18/2018

“An important part of caring for your aging parents is understanding their situation and knowing what they want. If you don’t know, then it is up to you to figure it out.”

It’s a good idea to talk with your parents on a regular basis about their wishes for the future, so that everyone can get comfortable with the conversation and the topics, says Next Avenue in the article “How to Have Difficult Conversations With Your Aging Parents.” You’ll all avoid a fair amount of stress and guesswork, if you can have these open and frank conversations.

Here are the conversations you need to have:

The Money Talk. What’s their financial situation? Do they have enough to pay their bills right now? What if they live another ten or twenty years? Do they have a will? Do you know where the will is, and the name of the estate planning attorney who created it? Do they have powers of attorney for finances in place?

The Health Talk. Medical issues that you’ve heard about but aren’t fully informed about need to be clarified. What medications do they take, and is there a list posted on the refrigerator, or located somewhere you can get to it, in the event of an emergency? Have they properly documented a power of attorney for healthcare?

The Aging Talk. Do they plan on aging at home, or are they considering moving to a continuing care facility? What senior living options should they consider, if and when they can’t live on their own anymore?

The End of Life Talk. This is the hardest one, but it is hard for everyone. If they should have a terminal illness, what do they want to happen? Do they have a medical directive, or a living will? How do they feel about extreme measures being taken to sustain life, if they are incapacitated?

The Family Legacy Talk. This is a warmer, happier conversation. What do they want the family to remember about them, and how can you work together to assemble the things that will help accomplish this? Are there family recipes, photo books, treasured heirlooms, videos or jewelry they want to pass along? Are there stories they want to share?

Note that these are not one-time conversations, but processes. Everyone will respond differently, and some parents may need more time to reflect and consider their answers than others. Your parents will need to be ready to have these conversations with you. Some conversations may touch on a raw memory and have to stop, to resume at a later point.

Depending on your parents’ personalities, you may want to speak with them together, if they are both living, or individually. One might be more comfortable discussing certain matters without the other present.

Take notes of the conversation. You’ll be able to review the notes with them if need be and share that information with siblings and family members. You can also see what’s left out. Your notes are not a legally binding document, but they can help when their wills are created or revised.

Speak with an estate planning attorney as part of this process. Estate planning attorneys are fluent in the issues of aging and will be able to discuss sensitive matters with your parents and you, bringing up issues you may not have considered. Choose an Estate Planning attorney who has the ability to create a true long term care plan, and has a person designated to assist families through this process as their loved one ages and their needs change.

10/03/2018

“A new survey conducted by LifeWay Research for the Southern Baptist Foundation found more than half of Southern Baptist pastors, overall, do not have a will, trust, living will, electronic will, legacy story or durable power of attorney with health care directives.”

However, executives at LifeWay Research say the survey shows a lack of awareness about estate planning and the laws which may be factors in pastors not having a plan in place. Procrastinating is common, but failing to have an estate plan in place can have a devastating impact on an estate.

Of course, basic estate planning saves a lot of trouble for family and loved ones. However, in addition, taxes can be minimized and assets protected.

According to the survey, pastors age 18-44 are the least likely to have a will (31%) or a durable power of attorney with health care directives (14%). Only about half of those pastors closest to retirement (age 55-64 and 65-plus) have a will (54% for both groups). Likewise, few of those closest to retirement (age 55-64 and 65-plus) have a health care durable power of attorney (25% for both groups).

It’s a bit of a surprise that so many pastors don’t have a plan for their families and property after their death, especially those that should be most likely to be thinking about this issue—the ones with young families. They seem to be the least prepared.

About 64% of the clergy surveyed, agree with a statement that the court decides who will care for a child, if the last parent dies without a will; 16% percent disagree, with 21% saying they didn’t know. When asked about assets, the survey showed that 48% of pastors said that if someone dies without a will, their family decides what happens with the assets of the deceased; 33% disagree, and 19% "don't know."

However, both with property and children, the court decides what happens to them, if there’s no will.

These estate planning questions were part of a mail and online survey of pastors conducted between April and June 2018. The mailing list was randomly drawn from a list of all Southern Baptist churches and included more than 1,100 completed surveys.

07/19/2018

“If you want to make sure someone other than your estranged spouse is able to plan your funeral, you need to have a new Health Care Directive put in place.”

Kate Spade and Anthony Bourdain were both separated from their spouses at the time of their deaths. Although it’s believed that these separations were amicable, the couples still weren’t legally divorced. This can make for some interesting estate planning issues.

Forbes’s recent article, “Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated” explains that when spouses decide to divorce, it’s usually a legal process. However, it’s becoming more common for spouses to remain permanently separated but not divorced. This is a gray area for both family law and estate law, where many don’t realize the legal implications.

Although the details of Kate Spade’s separation aren’t known, Bourdain’s separation from his second wife are, and his situation is a common one. He and his estranged spouse were together for years, but their work and other commitments caused them to move in separate directions. They had one child, whom they wanted to co-parent together.

However, with his untimely death, it brings up an odd result: his estranged spouse is his beneficiary. She will also be the owner of his legacy. In terms of immediate issues, she controls his remains and his funeral. Bourdain’s mother told the media that she was unsure of funeral plans with his estranged spouse still legally his next of kin. She said, “Although they are separated, she’ll be in charge of whatever happens.”

While this might be okay for the Bourdain family, in the event you consider a permanent separation, it may be wise to consider the pros and cons of an estranged spouse’s rights. When you get married, spouses are given rights previously unavailable to them in their single status with their partner. Separation doesn’t mean your spousal rights are immediately wiped out. Only a final divorce decree can fully terminate spousal rights. If there’s a death prior to a divorce, in most situations the surviving spouse will have legal control.

Even if the separation is amicable, there are a few things to consider. Make sure someone other than your estranged spouse is able to plan your funeral. To do that, you need to have a new Health Care Directive put in place. That’s a legal document, in which a person specifies what actions should be taken for their health, if they’re unable to make those decisions. It also address the disposition of the body in the event of death. Include your funeral plans in your health care directive and make sure the relevant people have copies of it, especially when there is a separation. In contrast to changing beneficiary designations or your estate plan in a divorce proceeding, you can make a new directive, and you aren’t required to name your spouse.

If you make a change, alert the key people. You and your estranged spouse should consider all the areas where spousal rights exist. It should be part of your planning process as you work through separation issues. Be sure your family law attorney and estate planning attorney also communicate with each other.

06/04/2018

“Getting remarried gives people a fresh start, an opportunity to learn from the past and to move forward. Unfortunately, for most couples, the next trip down the aisle can also come with a host of new financial challenges.”

Create a consolidated net worth statement. One fundamental mistake many couples make is failing to look at their combined net worth, until they start talking about how they will pay for their wedding or another big-ticket item. Those who remarry frequently have more complex financial responsibilities, such as child support, liquid and illiquid investment assets, as well as estate planning and tax-planning strategies. The best course is to be upfront from the start to avoid damaging your relationship in the long run. Take time to review your individual financial situations, including liabilities, before you create a consolidated statement of net worth.

Sign a pre or postnuptial agreement. This can be uncomfortable but can be valuable for both parties, if there’s a divorce. A pre or postnuptial agreement is particularly important, since it's the only way to legally claim specific assets within a marriage. In addition, a prenuptial agreement may ensure that any children within the marriage are financially protected, in the event one spouse dies. It’s also important to remember, even if you're recently married and don't have a formal prenuptial agreement, state law will often have one for you.

Think about all of your kids. Some spouses who were married previously may bring children into their new relationship. This creates many financial issues. Determine as a couple how you’ll financially address major expenses, like health care, child care, and tuition. When you've decided, discuss your plan of action with an attorney to be sure you're considering all potential options and their long-term implications.

Update your beneficiary designations. This is a common error. Assuming you want to name your new spouse as a beneficiary, you should review all your accounts and update the documents.

Update your estate plan. Estate plans can be forgotten with all of the details of a wedding. Talk with an experienced estate planning attorney to review your situation and update or create wills, powers of attorney, and health care directives to be certain that your new spouse, or another trusted person, has the decision-making authority that reflects your wishes.

Once a child is age 18, the parent is no longer the child's legal guardian.

You should identify the support required for your child and ask what other support they need, while they’re transitioning. Work with a special needs attorney and ask about guardianship. Guardianship is a way to protect an individual who can’t take care of herself, make informed decisions or handle financial assets. An experienced attorney will explain guardianship and alternatives that may be chosen, if the child is capable of making some, but not all, decisions on her own. There are different kinds of guardianships and different kinds of powers of attorney (POA) for estate and health care requirements.

A person can be disabled in some ways, but still be competent to execute the powers of attorney. If the person understands who their family is, who she is, if she’s oriented to time, and she knows who they trust to handle their business or health care decisions, then she can probably sign powers of attorney.

A POA is written authorization to represent a person and make specific decisions on her behalf. The child may have a POA over her health care or estate management. A guardianship of the child’s health care or estate management is appointed by a judge, after reviewing physician statements about the disabled person's needs.

Remember that having power of attorney over their child's financial matters, doesn't give parents power over everything. Things not covered in the POA document are things over which the agent doesn't have the authority. A POA can be revoked, when the person assigning it is competent. However, in a guardianship appointed by the court, you have a duty to act, until the court determines otherwise.

A guardianship requires physician reports which state that the alleged disabled person needs a guardian. The physician should state specific reasons for the court. Guardianship should be as narrowly designed as possible.

This means determining the person who will look out for your best interests, if you are unable to speak. In short, it involves naming someone you trust as your medical power of attorney.

A living will is an important document in your estate plan. However, you also need a medical power of attorney to help ensure that you are getting the kind of care you would want. A medical power of attorney, sometimes known as a health care power of attorney, designates the individual(s) you would want to make health care decisions in your stead, if you’re unable to communicate. This is your health care agent or representative. Unlike a living will, your health care agent can make decisions for you when your incapacitation isn’t life threatening.

If you don’t have a valid power of attorney designating your official health care agent, most likely either your spouse, an adult child or parent will be asked to make medical decisions on your behalf. This depends on the state in which you live and your circumstances.

Appointing a medical power of attorney is the only way to be certain the person you feel most comfortable with, is in charge in case of an emergency.

When you choose your representative, make sure he or she is willing to take on that responsibility. You should also name an alternate representative, if your primary person is unavailable. Be certain that he or she is comfortable in abiding by your wishes and relaying that information to your doctor.

Ask your estate planning attorney to complete the correct forms for your state of residence and have them notarized and/or witnessed.

01/02/2018

“A classic early warning sign of cognitive decline and possibly dementia is losing the ability to manage your personal finances. That can lead to a host of challenges, if you are the daughter, son, wife, husband or partner of a loved one in this situation.”

Fortunately, there are steps to take in advance that may help make things easier. Consider the following pre-planning steps, best implemented before you or your loved one are diagnosed with dementia:

Drafting a power of attorney can allow a trusted person to make your financial decisions when you are no longer able.

Purchasing long-term care insurance, if possible, can defray some of the high costs of care.

Drafting a health directive can allow a trusted person to make your medical decisions when you are no longer able, and ensure your wishes are carried out.

Managing finances for a loved one with dementia can be very difficult. Nobody relishes the thought of gathering around the dinner table, talking about the risk of dementia. But with average life expectancy on the rise, the chances are too high to ignore this problem.

The Aging, Demographics, and Memory Study by the National Institute on Aging found that 14% of Americans age 71 and older have some form of dementia. The Chicago Health and Aging Project estimates that nearly one-third of people 85 and older have Alzheimer’s. However, the real issue is that too few families will discuss the topic of managing money and deteriorating faculties with age. Only 25% of families surveyed discussed how their parents will be financially provided for, or cared for, as they get older, according to a 2014 study by Merrill Lynch.

When looking at people 50 and over, the survey noted that about 50% of those surveyed didn’t have a will, and only 40% had a health care directive.

A large component of estate planning is arranging your finances, so if cognitive decline develops, your caregiver can manage your money and help you maintain your quality of life.